Deepak Kumar Yadav vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 1839 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 03.01.2023
 
Delivered on: 18.01.2023
 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 2461 of 2022
 

 
Appellant :- Deepak Kumar Yadav
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko.
 
Counsel for Appellant :- Sumit Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 29.9.2022 passed by Additional Sessions Judge (F.T.C.), Pratapgarh in Sessions Trial No. 758 of 2016 arising out of Case Crime No. 382 of 2015 relating to Police Station- Raniganj, District- Pratapgarh, whereby convicted and sentenced the appellant under section-304-B I.P.C. for ten years rigorous imprisonment; under section-498-A I.P.C. for two years imprisonment with fine of Rs. 5,000/- and in default of payment of fine, two months additional imprisonment; under section- 4 of D.P. Act for one year imprisonment with fine of Rs. 2,000/- and in default of payment of fine, one month additional imprisonment.

2. The prosecution story, in brief, is that the complainant Dheeraj Kumar Yadav lodged a written report on 20.9.2015 with the allegations that his cousin sister Baby Yadav got married with Deepak Kumar Yadav (appellant) according to Hindu rites and rituals. After marriage, the husband (appellant) and in-laws harassed and tortured the deceased on account of additional dowry demand of motorcycle. When his cousin sister came to parental home (mayka), the incident about harassment and torture was told by her to the family members. It was further alleged that soon before 15 days of her death, the in-laws of the deceased harassed and tortured her and extended threat saying that they would kill her, if she failed to fulfil the demand of motorcycle from her father. On 20.9.2015, the first informant got information from the relative through telephone that the condition of his cousin sister is serious. Then the informant and the family members of the deceased reached at her matrimonial home and found that the deceased died due to burn injury. On the basis of written report, the FIR was lodged against the appellant and other family members U/s 498-A, 304B IPC and 3/4 D.P. Act on 20.9.2015 at 19.40 Hours.

3. During course of investigation, the dead body was sent for inquest and the same was conducted on 21.9.2015. After preparing the relevant papers relating to autopsy, the dead body was sent for post mortem and the same was conducted by the PW-4, Dr. Panchdev on 21.9.2015 at district hospital, Pratapgarh and prepared post mortem report and the doctor opined that about 90% of the body was burnt and cause of death due to ante mortem burn injury.

4. The prosecution so as to bring home the charges has examined the following witnesses:

i.) PW-1, Dheeraj Yadav who is the informant and proved the written report as Exh.-ka-1.

ii.) PW-2, Malti Devi who is the mother of the deceased.

iii.) PW-3, H.C. Surya Prasad Dubey who proved the chik report as Exh.-ka-2.

iv.) PW-4, Dr. Panchdev who proved the post mortem report as Exh.-ka-4.

v.) PW-5, D.L. Sudhir who is a retired Circle Officer and proved recovery memo of kerosene oil can and burnt cloth as Exh.-ka-5. He also proved the site plan as Exh.-ka-6, copy of dowry produced by the father of the deceased as Exh.-ka-7, charge-sheet as Exh.-ka-8. He also proved sealed bag as Exb.-1; kerosene oil can as Exb.-2; half burnt cloth as Exb.-3; matchstick as Exb.-4; and half burnt match stick as Exb.-5.

vi) PW-6, Nayab Tehsildar, Raj Kapoor who proved the inquest report as Ex-ka-9 and relevant papers as Ex-ka-10 to Ex-ka-14.

5. Thus, the prosecution relied on oral evidence of PW-1 to PW-6 and as documentary evidence of Ex-ka-1 to Ex-ka-14 as well as Exb.1 to Exb.-5.

6. The investigating officer after collecting the necessary papers conducted the investigation and after completing filed charge-sheet against the appellant and other co-accused U/s 498A, 304B IPC and 3/4 D.P. Act before the magistrate court who took cognizance and the case was committed to the court of sessions where the case was registered as S.T. No. 758/2016 and later on this case was transferred to the court of Additional Sessions Judge, F.T.C., Pratapgarh for trial. The charges were framed against the appellant and other co-accused namely, Dheeraj and Kalawati on 20.10.2016 U/s U/s 498A, 304B IPC and 3/4 D.P. Act and alternative charge U/s 302 IPC was framed on 28.9.2016. The charges have been read over to the appellant and other co-accused and all the accused persons denied the charges in toto and claimed to be tried.

7. After conclusion of the evidence of the prosecution, the statement of the appellant was recorded U/s 313 CrPC in which the accused-appellant denied the charges and stated the appellant has been falsely implicated in the case by the informant. He further stated that he is innocent and at the time of incident he was present in Mumbai and thus, he was not present on the spot. The informant and other family members demanded Rs. 5 lakhs from him and when he refused to do so, the false and frivolous FIR was lodged against him.

8. In defence, four defence witnesses i.e. (i) DW-1 Deepak Kumar; (ii) DW-2; (iii) DW-3; (iv) DW-4, Mukesh Kumar Bansal were examined.

(i) DW-1, Deepak Yadav who is the present appellant and stated on oath that at the time of alleged incident i.e. 20.9.2015, he was present in Mumbai. He was the driver in Reshmi Roadlines Transport Gandhidham, Kuchhbhuj, Gujrat. He further stated that before this incident he came back to Mumbai. He further stated that when he got the information regarding the incident, he was present at Taloja and he returned back after two days of the incident on 22.9.2015. When he came back from Mumbai then the first informant demanded Rs. 5 lakhs from him.

(ii) DW-2, Ram Surat Yadav who stated that on oath that on 20.9.2015, the deceased herself set ablaze and dead body of the deceased was taken out breaking the door of the room. At the time of incident, mother-in-law of the deceased was also not present.

(iii) DW-3 Siddharth Narayan who stated on oath that he deposited huge sum of money in the account of the deceased.

(iv) DW-4, Doctor, Mukesh Kumar Bansal who conducted the post mortem.

9. After appreciating the evidence available on record, the trial court convicted the appellant and acquitted the other accused vide order dated 29.9.2022 as aforesaid.

10. Being aggrieved and dissatisfied with the aforesaid order dated 29.9.2022, this criminal appeal has been preferred U/s 374(2) CrPC.

11. I have heard Mr. Sumit Kumar Srivastava, learned counsel for the appellant, learned AGA appearing for the State and perused the material available on record.

12. Learned counsel for the appellant submits the trial court has convicted the appellant on the basis of conjecture and surmises. The trial court failed to appreciate the evidence available on record. There are material contradictions in the prosecution witnesses. It is also submitted that only on the basis of interested witnesses, the trial court convicted the appellant and in this matter no independent witness was produced by the prosecution. The counsel for the appellant submits that at the time of incident, he was not present on the spot when the deceased committed suicide by pouring kerosene oil herself. He reached the village after two days of the incident as soon as he got information regarding the death of the deceased. It is further submitted that the complainant of this case demanded Rs. 5 lakhs from him when he refused to do so, then the present FIR was lodged by cousin of the deceased against the appellant. It is also submitted that the dead body of the deceased was recovered after breaking the door of the room where she herself committed suicide by setting herself on fire after pouring the kerosene oil. Thus, the learned counsel for the appellant submits that this is the case of suicide not of dowry death and therefore, the accused is supposed to be given the benefit of doubt as ingredients of 304-B IPC are not made out against him.

13. Learned counsel has further submitted that husband was younger in age to the deceased and that was also a factor which may be considered, which will go in favour of the accused. Learned counsel has further submitted that what was the date of demand is nowhere proved, it is submitted that there is a missing link between the date of demand and the death and therefore, the accused would be entitled to the benefit as propounded by the Apex Court in Hem Chand Vs. State of Harayana (1994) 6 SCC 727. Thus the prosecution has failed to establish that the death of the deceased (Baby Yadav) occurred due to cruelty and harassment by the appellant. He further submits that the prosecution has failed to establish the charges against the appellant beyond shadow of doubt.

14. Lastly, the counsel for the appellant submits that the appellant is languishing in jail before commencement of the trial; during period of trial and after conviction, he is detained in jail since 29.9.2022. Thus the appellant is lodged in jail since more than 7 years. Apart from arguing the merit of the case, learned counsel for the appellant contended that there is no evidence against the appellant regarding the cruelty or harassment committed by him. If the court arrived at a conclusion that the appellant was guilty his sentence kindly be reduced to the period already undergone U/s 498A, 304B IPC and 4 D.P. Act.

15. Learned AGA submitted that the deceased committed suicide at her matrimonial home and cause of death is ante mortem burn injury and the deceased died under unnatural circumstances. It is further submitted that the prosecution has fully established that the death of the deceased was done under unnatural circumstances within two years of marriage and soon before her death she was subjected to harassment and cruelty due to demand of dowry and the appellant is rightly convicted U/s 498A, 304B IPC and 4 D.P. Act and as per perusal of the judgement the prosecution has clearly established the charges levelled against the appellant and thus the prosecution has not failed to establish beyond shadow of doubt and learned trial court rightly convicted and sentenced him and further submitted that in these circumstances, there is no ground for leniency.

16. To appreciate the argument of the parties, it is necessary to look into the provisions of sections 498A, 304B IPC and 133 of the Evidence Act.

17. Their Lordship of Hon'ble Supreme Court in AIR 2013 (SC 1039) in case of Kashmir Kaur vs. State of Punjab has explained the ingredients of offence under section 304B of IPC which reads as under:-

From the above decisions the following principles can be culled out:

a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.

c) Such death occurs within seven years from the date of her marriage.

d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

e) Such cruelty or harassment should be for or in connection with demand of dowry.

f) It should be established that such cruelty and harassment was made soon before her death.

g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.

h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.

i) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.

j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.

k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.

l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.

m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.

18. Section 113 B of the Act reads as follows:

[113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in 304 B of the Indian Penal Code, (45 of 1860).]

19. As per definition of dowry death under Section 304 B IPC and the wording in the presumptive Section 113 B of the Act, if it is proved that death of woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death (i) She was subjected to cruelty or harassment by her husband or his relatives, or (ii) Such cruelty or harassment was for, or in connection with, demand of dowry, or (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.

20. In [2016 (4) SCC Page 604], in the case of Gajanan Dashrath Kharate v. State of Maharashtra, their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under:-

"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

21. Now, it has to be seen that just before her death, deceased was subjected to cruelty or harassment by her husband and any relative of husband in connection with demand of dowry. This element and burden of prove in case of dowry deaths have been dealt with in detail by Hon'ble The Apex Court in Sher Singh @ Pratapa v. State of Haryana 2015 (89) ACC 288 (SC). The Apex Court held as under:

12. In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should "prove" the existence of a vital sequence of facts, despite having employed the word "shown" in Section 304 B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions.

13. In Section 113A of the Evidence Act Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in section 113 B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304 B "deemed" the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word "presume" as: supposed to be true, take for granted; whereas "deem" as: regard, consider; and whereas "show" as: point out and prove. The Black's Law Dictionary (5th Edition) defines the word "show" as- to make apparent or clear by the evidence, to prove; "deemed" as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; "presume" as- to believe or accept on probable evidence; and "Presumption", in Black's, "is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted." The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction:

"Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue.

The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.

There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads automatism, the evidential burden is upon him. (3) When the defendant pleads insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he is telling the truth than not). (4) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it".

14. As is already noted above, Section 113 B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word 'deem' to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word 'deemed' so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word 'shown' in Section 304B of the IPC as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 304B of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the IPC, in our opinion, is to counter what is commonly encountered - the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Cr.P.C.

22. It is well settled principle that once prosecution proved that death was occurred within 7 years of marriage and the deceased/victim was subjected to cruelty and harassment by her husband and relative of her husband soon before her death in connection with the demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt. In the present case, the accused/appellant failed to prove his case that why the deceased (Baby Yadav) herself committed suicide by setting herself on fire pouring kerosene oil.

23. Last argument of learned counsel for the appellant is that the appellant is languishing jail since 06.01.2016. Appellant is a very poor person. It is also submitted that the deceased committed suicide by setting herself on fire pouting kerosene oil and therefore, he prayed for reduction of sentence to the period already undergone in jail. It is evident that the appellant is languishing in jail for more than 7 years.

24. The Indian Penal Code, like other major penal statues, prescribes punishment for various offences created under it. It provides for four kinds of punishments;

(i) death; (ii) imprisonment for life; (iii) imprisonment for various terms which may be either simple or rigorous, and(iv) fine. A further peep into the legislative paradigm of the code discloses that certain offences are made punishable with a minimum sentence with a cap qua the maximum, with or without fines, For some offences, it prescribes an upper limits of sentence, leaving the minimum, to the discretion of the court, which may even be of one day.

25. The Code, thus, gives much leeway to, and confers wide discretion on, the judiciary to pick up an opt punishment, if the offence concerned is made punishable by different forms of alternate punishment and a choice is given to it to opt either of them, in isolation or combination, and/or to quantify ''punishment' within the range of ''minimum' and ''maximum' punishment, if any, prescribed for the offence. In the absence of any sentencing policy or standardized guiding principles in India, a court is virtually left to determine sentence which, in its opinion, meets the ends of justice. However, it is the duty of a court to use its judicial discretion to award a sentence that is ''proper' in the backdrop of circumstances of the case at hand, and ''matches' with the guilt of offender.

26. In Gurukukh Singh v. State of Haryana, reported in 2009(11) Scale 688, the Supreme Court not only emphasized that it is the duty and obligation of every court to award proper sentence but also enumerated various factors that the court is required to consider while determining the sentence. They are (i) motive or previous enmity; (ii) whether the incident had taken place on the spur of the moment; (iii) the intention/knowledge of the accused while inflicting the blow or injury; (iv) the gravity, dimension and nature of injury; (v) the age and general health condition of the accused; (vi) whether the injury was caused without premeditation in a sudden fight; (vii)the nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (viii) the criminal background and adverse history of the accused; (ix) number of other criminal cases pending against the accused; (x) incident occurred within the family members or close relations, and (xi) the conduct and behavior of the accused after the incident, whether the accused had taken the injured/ the deceased to the hospital immediately to ensure that (s)he gets proper medical treatment ? In the same breath, the apex court has made it clear that these factors are only illustrative and not exhaustive. These are some of the relevant factors which are required to be kept in view by a sentencing court. Each case, obviously, has to be seen from its special perspective. The court must ensure that the accused receives appropriate sentence and that it must be proportionate to the gravity of the offence committed by the convict. Proportion between ''crime' and ''punishment' is one of the accepted goals of criminal justice system. The principle of proportion between crime and punishment essentially requires a court to prepare a balance-sheet of mitigating and aggravating circumstances and quantify the ''punishment' based thereon. The principle of proportionality is evolved to remove (or at least to minimize) arbitrariness in the sentencing process.

27. In Jameel v. State of Uttar Pradesh, reported in 2009(13) SCALE 578, the apex court further stressed that the imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice, the court stated, demands that the courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime and conscience of the society. It also reminded the courts of the need that they, while modulating sentence, need to be stern or to be tempered with mercy whenever factual matrix of a case at hand warrants. The nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and other attending circumstances may be necessary pointers for the court in tailoring ''proper' sentence.

28. So far as the question of sentence is concerned, the same is a matter of discretion of the learned trial Judge. It is well settled law that when the discretion has been granted to the learned trial Judge, if the same is not arbitrarily, capriciously or perversely but has been properly exercised by accepted judicial norms, the appellate court ought not to interfere to the detriment of the accused person unless there are very strong reasons which are not disclosed on the face of the judgment for the lesser punishment.

29. Considering the above propositions of law and facts and circumstances of the present case, I am of the view that the appellant is in jail since 06.01.2016 and as such, seven years have already elapsed. So, in the interest of justice, it would be appropriate to reduce the sentence from 10 years to 8 years with all remissions under Sections 304-B and 498-A I.P.C. and Section 4 of the D.P. Act. However, the fine shall not be stayed.

30. The Jail Authority will calculate the period of his incarceration and decide the same in accordance with jail manual.

31. Thus the appeal is dismissed on the point of conviction but partly allowed on the point of sentence.

32. The trial court record be sent back. A copy of this order be also sent to the court concerned as well as District Superintendent of Jail, Pratapgarh for necessary compliance.

Order Date :- 18.1.2023

Shravan